NIAZ YOUSUF S/O.MOHAMMED YOUSUF v. UNION OF INDIA and 2 others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN THURSDAY, THE 13TH DAY OF MARCH 2014/22ND PHALGUNA, 1935 WP(C).No. 5758 of 2014 (T) --------------------------- PETITIONER: ------------------- NIAZ YOUSUF S/O.MOHAMMED YOUSUF, NIAZ MANZIL, PARAYIL EDAVA P.O., THIRUVANANTHAPURAM. BY ADVS.SRI.D.KISHORE SMT.MINI GOPINATH RESPONDENTS: ---------------------------- ## 1. UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF EXTERNAL AFFAIRS, NEW DELHI-110 001. ## 2. THE PASSPORT OFFICER REGIONAL PASSPORT OFFICE KAITHAMUKKU THIRUVANANTHAPURAM-695 001. ## 3. THE ASSISTANT PASSPORT OFFICER PASSPORT SEVA KENDRA, GROUND FLOOR KARMAL TOWERS, OPP.COTTON HILL GIRLS HIGH SCHOOL VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014 BY SRI.P.PARAMESWARAN NAIR,ASG OF INDIA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5758 of 2014 (T) --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------EXT.P1 - TRUE COPY OF THE RELEVANT EXTRACT OF THE PASSPORT OF THE PETITIONER BEARING NO.N735479 EXT.P2 - TRUE COPY OF THE SECONDARY SCHOOL LEAVING CERTIFICATE OF THE PETITIONER EXT.P3 - TRUE COPY OF THE DEGREE CERTIFICATE OF THE PETITIONER EXT.P4 - TRUE COPY OF THE CERTIFICATE OF MARRIAGE OF THE PETITIONER EXT.P5 - TRUE COPY OF THE ELECTORAL CARD OF THE PETITIONER EXT.P6 - TRUE COPY OF THE PENALTY PAYMENT RECEIPT DATED 13-2-2014 ISSUED FROM THE PASSPORT SEVA KENDRA EXT.P7 - TRUE COPY OF THE ACKNOWLEDGEMENT LETTER DATED 13-2-2014 ISSUED BY THE 3RD RESPONDENT EXT.P8 - TRUE COPY OF THE JUDGMENT IN WPC.29955/2009 REPORTED IN 2012(4) KLT 419 ## RESPONDENT(S)' EXHIBITS --------------------------------------- NIL /TRUE COPY/ VPS PA TO JUDGE ## **P.N.RAVINDRAN** , **J.** ## **--------------------------W.P.(C) No.5758 of 2014 -------------------------Dated this the 13[th] day of March, 2014** ## **J U D G M E N T** The petitioner an Indian citizen and a Dentist by profession was issued an Indian Passport bearing No.N735479 way back on 10.2.1993 by the Passport Officer, Thiruvananthpuram, when he was less than 10 years of age. In that passport, the petitioner’s date of birth was entered as 16.2.1981. A copy of the said passport is on record and marked as Ext.P1. The validity of the said passport expired on 9.2.2003. However, in the school records the petitioner's date of birth was entered as 16.2.1982. Ext.P2 Secondary School Leaving Certificate and Ext.P3 degree certificate evidence the said fact. The identity card issued to the petitioner by the Election Commission of India also evidences the said fact. The petitioner has averred that when he applied for a fresh passport showing his date of birth as 16.2.1982, which according to the petitioner is his correct date of birth, the third respondent after verification of the documents produced by the petitioner held that the petitioner had suppressed the fact that he was earlier issued a passport with a different date of birth and thereupon levied the sum of Rs.2000/- as penalty. The writ petition proceeds to state that though the said amount was paid, the W.P.(C) No.5758/2014 2 application for passport was not considered and instead, the petitioner was asked to produce a certificate issued by the Registrar of Births and Deaths to prove his date of birth. In this writ petition, the petitioner prays for a writ in the nature of mandamus commanding respondents 2 and 3 to consider his application for a fresh passport without insisting on the production of a birth certificate issued by the competent authority. Reliance is placed on the circular dated 29.10.1997 issued by the Government of India, Ministry of External Affairs and the decision of this Court in **Swapna Siju v. Union of India and Another** (2012 (4) KLT 419) to contend that in the case of those applicants who were born before 26.1.1989 it is not necessary to produce an extract from the register of Births and Deaths and that reliance can be placed on the school records. 2. I heard Sri.D.Kishore, learned counsel appearing for the petitioner and Sri.P.Parameswarana Nair, learned Assistant Solicitor General of India appearing for the respondents. The learned counsel appearing for the petitioner contended that the earlier passport was issued to the petitioner on 10.2.1993, that even going by the date of birth shown therein, the petitioner was only 11 years of age and therefore it is evident that the mistake regarding the date of birth would not have been committed by the petitioner, but by the guardian W.P.(C) No.5758/2014 3 who had submitted the application. The learned counsel also submitted that the petitioner’s date of birth was not registered and that the entry in the school records disclose that the petitioner was born on 16.2.1982. The learned counsel for the petitioner submitted that the circular dated 29.10.1997 issued by the Government of India, Ministry of External Affairs inter alia stipulates that the birth certificate or a certificate given by the educational authority can be relied on to correct mistakes regarding the date of birth in the passport and therefore by parity of reasoning, when a fresh passport is issued reliance can be placed either on the birth certificate or on the school records for the issue of a passport showing the correct date of birth. Per contra, Sri.P.Parameswaran Nair, learned Assistant Solicitor General of india contended that in table III forming part of schedule 3 of Passports Act, 1967 it is stipulated that if the change in the date of birth is more than two years or in the case of contradicting documents an order passed by the Judicial Magistrate of First Class should be produced and that was the reason why the petitioner was called upon to produce a copy of the birth certificate. 3. A similar issue arose for consideration before this Court in **Swapna Siju v. Union of India and Another** (2012 (4) KLT 419). The applicant therein had obtained a passport at a point of time when W.P.(C) No.5758/2014 4 she was minor, showing her date of birth as 29.4.1974. After the validity of the passport expired, she submitted an application under the Tatkal scheme for the issue of a new passport. Along with the application, the passport initially issued to her was enclosed. In the application for a new passport, the applicant had given her date of birth as 29.4.1975 instead of 29.4.1974, the date of birth given in the earlier passport. The Passport Officer was not satisfied with the explanation offered by the petitioner regarding the disparity in the date of birth and declined to accept her request that as her date of birth had not been registered, the school records should be relied on. The Passport Officer accordingly rejected the application. Challenging that order, she moved this Court. After considering the rival contentions and in view of the fact that the petitioner was a minor when the passport was initially issued, this Court held that the mistake regarding the date of birth might have committed by the person who had submitted the application on behalf of the minor and therefore the applicant cannot be personally held responsible for the entry regarding date of birth. After referring to the various circulars issued by the Ministry of External Affairs namely the circulars dated 18.4.2001, 29.10.2007 and 15.1.2008 this Court held as follows: _“It is thus evident from the various circulars referred to above that in the case of applicants who are born before 26.1.1989, it is not necessary to produce an extract from the Register of births,_ W.P.(C) No.5758/2014 5 _generally called the birth certificate to prove the date of birth of the applicant. The circulars referred to above also confer on the Passport Issuing Authority the discretionary power to correct the date of birth in a passport where he or she is satisfied either with reference to the birth certificate or the school records that the earlier entry was mistakenly made. The circular also notices that the mistake regarding the date of birth might have been committed either by the applicant himself or by the passport Issuing Authority. The fact that the petitioner was a minor aged nine years (going by the date of birth as in the previous passport) when she was first issued a passport is not disputed. It is not known on what basis was the date of birth in the earlier passport given as 29.4.1974. As noticed earlier, the petitioner who was admittedly a minor at that point of time would not have made the application on her own. It is also not known whether the documents that accompanied the application on the basis of which a passport was issued on 29.4.1983 are currently available with the second respondent. Whether during the year 1983, it was mandatory to produce proof of date of birth along with the application for passport is also not discernible from the pleadings and the circulars referred to above.”_ 4. This Court also held in paragraph 8 that as the earlier passport was issued to petitioner at a point of time when she was a minor and in view of the fact that in the secondary school leaving certificate, which, in the case of applicants born before 26.1.1989, is a document which can be relied on to prove the date of birth is available for examination, the Passport Issuing Authority, should have acted on the entry regarding the date of birth in the secondary school leaving certificate and issued a passport to the petitioner showing the date of birth as shown therein. The writ petition was accordingly allowed and the Regional Passport Officer, Cochin was directed to issue a fresh passport after verifying the original of Secondary School Leaving Certificate. The stand now taken by the Government of India, notwithstanding a binding decision of this Court which has attained 6 W.P.(C) No.5758/2014 finality, is that in the case of disparity in the date of birth, an order of the Judicial Magistrate of First Class should be produced in cases where the difference in the date of birth is more than two years and where there are conflicting documents. 5. In the instant case, the date of birth shown in the passport issued to the petitioner at a point of time when he was a minor is 16.2.1981. The correct date of birth according to the petitioner is 16.2.1982. The difference is therefore not more than two years but only of one year. Likewise, the instant case is also not one where there are conflicting documents. The conflict is between the date of birth in the passport issued to the petitioner when he was a minor and the date of birth in the school records. Reference to conflicting documents in Table 3 of Schedule III contemplates a case where the date of birth in the school records and in the birth certificate do not tally and not a case where the date of birth in the passport is sought to be corrected with reference to the school records or the birth certificate. In such circumstances, I am of the opinion that the respondents are bound to issue a passport to the petitioner showing his date of birth as 16.2.1982 after verifying the original of the Secondary School Leaving Certificate. If a different view is taken, the passport which is required to be corrected will be treated as a basic 7 W.P.(C) No.5758/2014 document showing the date of birth thereby virtually defeating the very purpose for which the circulars referred to in paragraph 3 above have been issued. I accordingly hold that the petitioner is entitled to succeed. For the reasons stated above, I dispose of the writ petition with a direction that in the event of the petitioner producing the original of Ext.P2 Secondary School Leaving Certificate along with a certified copy of this judgment, the third respondent shall re-open the petitioner's application for passport referred to in Ext.P7 letter, process it and issue a fresh passport to him if there is no other impediment for the issue of a passport. The officer before whom the original of the Secondary School Leaving Certificate is produced shall, after scrutinizing it return the original thereof on the day it is produced. Needful in the matter shall be done and the passport issued, if the application is otherwise in order, expeditiously and in any event within one month from the date on which the petitioner produces the original of Secondary School Leaving Certificate along with a copy of this judgment before the third respondent. ## **(JUDGE)** vps W.P.(C) No.5758/2014 8